New EEOC Guidelines Shift Legal Rules for Disability Discrimination

The Equal Employment Opportunity Commission’s new regulations implementing the ADA Amendments Act, or ADAAA, have changed much of the legal framework for determining disability discrimination.

The following are some of the changes that human resources professionals should keep in mind:

Redefinition of ‘regarded as’ prong of disability
The ADA prohibits discrimination against an individual who is “regarded as” having a disability. Under the new definition of “regarded as,” an employee does not have to show that the employer regarded him or her as substantially limited in a major life activity.

Practically speaking, that means an employee can prevail by showing that the employer perceived him or her as having a disability, and that the employer discriminated against the employee because of that perception.

Mitigating measures
Under the original version of the ADA, as interpreted by the U.S. Supreme Court, “mitigating measures” counted in determining whether a person was substantially limited in a major life activity. Therefore, if a diabetic person took insulin, and the insulin completely controlled the condition, the person would not have been considered disabled.

Under the ADAAA and the new regulations, however, the positive effects of mitigating measures must be disregarded in determining whether an individual has a disability. On the other hand, negative effects of a mitigating measure may be considered.

The new regulations also make clear that mitigating measures do not include glasses or contact lenses; positive and negative effects of mitigating measures should be considered when determining eligibility for a reasonable accommodation; and employers cannot require an employee to use a mitigating measure.

Rules of construction
The new regulations list “rules of construction” for determining whether a disability “substantially limits” an individual in a major life activity. According to the EEOC, once these rules of construction are applied, there are certain impairments that will automatically be considered a disability, including diabetes, epilepsy, HIV infection, cancer and post-traumatic stress disorder. The rules of construction significantly expand the impairments that are covered by the ADA and increase employers’ exposure to liability.

Major life activities
The new regulations also provide an expanded and nonexhaustive list of what constitutes a “major life activity” under the ADA. The definition of a major life activity now includes “the operation of major bodily functions,” such as the immune system, normal cell growth, and digestive, neurological, brain, respiratory, circulatory and reproductive functions.

The term “major” is not to be interpreted strictly. For example, “lifting” is considered a major life activity in the new regulations, regardless of whether lifting is a central part of the daily life of the individual claiming to be limited in lifting, or, indeed, of most people’s daily lives. If an employee cannot lift 15 pounds, but an ordinary person can, that employee may be substantially limited in the major life activity of lifting.

However, if heavy lifting is an essential component of the job, and the employee cannot lift 50 pounds, that employee is substantially limited in the major life activity of “working” because he or she is limited in a class of jobs that requires heavy lifting and is, therefore, eligible for a reasonable accommodation.

What this means is that the employee can ask for a reasonable accommodation if he or she cannot lift the 50 pounds, but it does not necessarily mean the employee is a “qualified” individual with a disability under the ADA.

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